IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20130019291 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired.

2.  The applicant states he was released from active duty at his expiration term of service (ETS) date vice being medically retired.  The "National Medical Center in Bethesda," Maryland refused to give him a medical board at the time of his separation.  However, the Department of Veterans Affairs (VA) awarded him a 
70 percent (%) disability rating.

3.  The applicant provides:

* approximately 600 pages of medical records
* Orders Number 9028003, dated 28 January 2009
* two VA rating decisions, dated 5 March and 9 April 2013
* two letters from the VA, dated 8 March and 25 March 2013

CONSIDERATION OF EVIDENCE:

1.  On 29 January 2009, the applicant enlisted in the Regular Army and he held military occupational specialty (MOS) 91B (Wheeled Vehicle Mechanic).  The highest rank/grade he attained was specialist/E-4.

2.  He was stationed at Fort Drum, NY, when his unit deployed to Afghanistan in March 2011.

3.  He provided series of medical records dated between10 January 2009 and 
13 September 2011.  

	a.  The various medical records indicate his hearing was within normal range/limits.

	b.  Four Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 6 October 2009, 7 October 2009, 26 October 2009, and 27 October 2009 showing he complained of a pulled right hamstring.  The treating physician's noted he was/would be issued a temporary profile for 10 days for no running, no jumping, no road marching, walking at his own pace, and lifting no more than 
10 pounds.

	c.  An SF 600, dated 20 September 2010, showing he complained of a sprained left ankle on loose rocks during a run.  The treating physician stated he was placed on quarters for 24 hours.  He had several follow-up appointments; however, it appears the ankle sprain resolved.

	d.  An SF 600, dated 3 September 2011, showing he sprained his left ankle on loose rocks while getting off a bulldozer.  He was put on crutches until he was able to bear weight comfortably.

	e.  An SF 600, dated 13 September 2011, showing he reported having a headache, tinnitus, memory loss or lapse, and high irritability.  He stated that on 
11 September 2011 a rocket propelled grenade (RPG) hit the front right corner of his vehicle.  He hit his head and was dazed.  However, he was found responsive and did not lose consciousness.  After a thorough examination, no abnormalities we noted.  He was placed on quarters for 24 hours and released without limitations.  

4.  On 30 October 2011, he was injured by an RPG blast while operating a bulldozer.  He provided a series of medical records dated between 1 November 2011 and 10 May 2012.  His medical records (approximately 600 pages) show his injuries included moderate traumatic brain injury (TBI) due to depressed frontal bone fracture, left frontoparietal subdural hemorrhage, left basal ganglia and internal capsule contusions, bilateral tympanic membrane ruptures, and soft tissue injuries to the face, mandible, head, neck, all four extremities, abdomen, and scrotum.

	a.  He was primarily treated at Walter Reed/Bethesda, Maryland where he underwent a series of irrigation and debridement (I and D) procedures to his torso, scrotum, and left testicle.  He also underwent closure of facial fractures, split thickness skin graft to left lower extremity, and a right tympanoplasty (surgical reconstruction of eardrum).  

	b.  His physical wounds healed well and he participated in physical therapy to help strengthen and treat his muscular skeletal issues.  He progressed very well and was released from this program in March 2012.  Prior to his release he completed a diagnostic Army Physical Fitness Test and his therapist stated he did an "awesome" job.

	c.  After his eardrums were surgically reconstructed he still had significantly reduced hearing in his left ear.  He was fitted for a hearing aid for his left ear in March 2012.

	d.  He had been undergoing special therapy for TBI, psychological health, and cognitive functioning.  He had difficulty sleeping but his cognitive functions all returned.  After he underwent a battery of tests, he and his treatment team indicated he "passed with flying colors."  He was released from therapy and from treatments in March 2012.  His medical team did not recommend any follow up visits upon his release/discharge from the program.  They also made the recommendation that he return to duty.

	e.  His medical records indicate he was issued a series of temporary profiles; however, he was never issued a permanent profile.  Additionally, medical authorities never recommended he go before a medical evaluation board (MEB) or physical evaluation board (PEB).  Based on his medical records, the medical authorities recommended that he return to duty.  His medical team was aware he was scheduled to ETS in July 2012 and he had a team working with him to help him plan for this with respect to jobs and education.

	f.  His medical records show medical authorities recommended he reclassify into a new MOS, one where he would not be exposed to loud noise on a regular basis.  However, the applicant indicated on several occasions throughout his medical records that he had no desire to continue his military service.

	g.  His medical records indicate he was returned to duty, at Fort Drum, NY, in middle to late March 2012.  After this period there are no further medical records documenting his progress.

5.  He was honorably released from active duty on 21 July 2012.  His DD Form 214 shows in:

* item 25 (Separation Authority):  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 (Separation for Expiration of Service Obligation)
* item 26 (Separation Code):  MBK
* item 27 (Reentry Code (RE Code)): 1
* item 28 (Narrative Reason for Separation): Completion of Required Active Service

6.  Title 10, U.S. Code (USC), chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected.

	b.  Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB, when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board, when they are command-referred for a fitness-for-duty medical examination, and or they are referred by HRC.

	c.  The PDES assessment process involves two distinct stages:  The MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

7.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Paragraph 3-3a provides that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  

8.  Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

9.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant stated he was refused an MEB and should have received a medical retirement because he received a 70% disability rating from the VA.

2.  However, if and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

3.  Medical authorities never determined that his conditions failed retention standards or that his conditions were found unfitting.  Additionally, his record does not contain any information showing he had a permanent physical profile.

4.  The evidence of record shows his conditions improved and he was returned for duty.  His medical records do not indicate he needed to be referred to an MEB/PEB.  However, medical officials recommended that he be reclassified into an MOS that did not require him to be around a lot of noise; however, he indicated on numerous occasions that he did not wish to continue his military service.  As such, it appears he was permitted to ETS.  He could not have been involuntarily retained beyond his ETS.

5.  In order to be separated or retired for disability, the Army has a process that begins with entry into the PDES.  Referral to the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  In the applicant's case, there is no evidence to show he had:

* a permanent physical profile
* a diagnosis that any of his medical conditions failed retention standards 
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his grade
* a medical examination that warranted his entry in the PDES

6.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130019291



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ABCMR Record of Proceedings (cont)                                         AR20130019291



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